Allahabad High Court
Satya Prakash vs State Of U.P. And 4 Others on 9 February, 2017
Author: Dilip B Bhosale
Bench: Dilip B. Bhosale, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 712 of 2016 Appellant :- Satya Prakash Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Raj Narayan Gupta,Sri Ajay Bhanot Counsel for Respondent :- C.S.C. Hon'ble Dilip B. Bhosale,Chief Justice Hon'ble Yashwant Varma,J.
Order on Civil Misc. Delay Condonation Application No. 363638 of 2016:
The delay of 96 days in filing the special appeal is condoned since sufficient cause has been shown in the Affidavit filed in support of the application for condonation of delay.
The application stands disposed of. There shall be no order as to costs.
Order on appeal Heard Mr. Ajay Bhanot, learned Senior Counsel assisted by Mr. Raj Narayan Gupta for the appellant and Mr. Rama Nand Pandey, the learned Additional Chief Standing Counsel for the State respondents.
The original petitioner assails the judgment and order rendered by the learned Single Judge on 20 July 2016 whereby a writ petition preferred by him challenging an order of termination has come to be disposed of with the following operative directions:
"18. Considering the facts of the case of the petitioners, the findings recorded in Para-15 above and the law laid down by Hon'ble Supreme Court in the afore-noted judgments, I find that it would be iniquitous, more unfair and unwarranted to permit the respondents to recover the payments made to the petitioners for the period they worked/ remained in employment.
19. In view of the aforesaid, the impugned order cancelling appointment of the petitioners, is upheld. However on facts, it is directed that salary and other benefits received by the petitioners from the respondents shall not be recovered from them."
In terms of the order impugned in the writ petition, the appointment of the appellant on the post of Peon came to be annulled on the ground firstly that the process of recruitment had been initiated in the months of February, March and May 1985 whereas the selection process was to commence in the "recruitment year" commencing from 1 July 1985 to 30 June 1986. The second ground which was taken into account by the respondents was that the procedure prescribed under the Government Order dated 31 October 1984, had not been adhered to. It was lastly noted that the appointment had been made without following the procedure prescribed under the Group D Employees Service Rules, 19851 which had come into effect from 16 March 1985.
The learned Single Judge after noticing the rival submissions advanced before him formulated the following questions for determination:
"(i) Whether the relevant Service Rules for recruitment became operative from 16.03.1985 inasmuch as Rule 1(2) of the Rules provides that "the Rules shall come in force at once" ?
(ii) Whether appointments of petitioners on 18.04.1985, were illegal due to non-observance of the Rules and, therefore the same were cancelled lawfully?
(iii) Whether State Government is entitled to recover salary and other benefits from the petitioners which were received by them during the pendency of the writ petition?
6. Since the facts and controversy involved in these writ petitions, are similar and therefore with the consent of the learned counsel for the parties, Writ-A No.15550 of 1985 is treated as a leading writ petition and the facts thereof are being noted."
The facts on which there does not appear to be much dispute and which stand duly noticed by the learned Single Judge also are as follows.
The appellant is stated to have been appointed on the vacant post of Peon consequent to the transfer of one Sri Rama Kant Pathak. This appointment in the office of the District Employment Officer was described in the appointment order as being wholly temporary and liable to be brought to an end at any time upon issuance of one month's notice or wages in lieu thereof. The appointment so made on 18 April 1985 was set at naught by the order dated 23 September 1985 on grounds which have been extracted herein above. Pursuant to the order dated 23 September 1985, the District Magistrate issued directions to all the departments to ensure compliance of the Government Order dated 23 September 1985 and effect the termination of all employees whose appointments fell foul of the terms enumerated in the government order aforementioned. It is at this stage that the appellant instituted the writ petition before this Court. On 16 October 1985, a Division Bench of the Court entertained the writ petition and passed the following interim order:-
"Issue notice. Until further orders the respondents are restrained from terminating the petitioner's services in pursuance of the orders of the District Magistrate dt. 23.9.85"
Pursuant to the aforesaid interim order, the appellant is stated to have continued in service. From a reading of the judgment of the learned Single Judge it appears that the primary submission which came to be advanced before the learned Single Judge was as to whether the promulgation of the 1985 Rules would have the effect of eclipsing the appointment made in favour of the appellant and other similarly situated employees. This issue itself arose in the backdrop of the contention of the appellant that although the 1985 Rules are dated 16 March 1985, they would be deemed to have come into force only upon their publication in the Official Gazette which in the facts of the present case came about on 31 August 1985. According to the appellant since the 1985 Rules came to be published for the first time only on 31 August 1985, they would be deemed to have commenced or come into operation only with effect from the said date and therefore, the appointment of the appellant which had been made on 18 April 1985 [and, therefore, evidently prior to the publication of the 1985 Rules in the Official Gazette], would not stand effected. This submission stands duly noticed in quite some detail in the order dated 18 July 2016 passed upon the writ petition and was also formulated as the primary issue by the learned Single Judge.
Reiterating the submissions advanced before the learned Single Judge on this score, Sri Ajay Bhanot, learned Senior Counsel appearing for the appellant, submitted that in order for the 1985 Rules to come into effect it was imperative that they be published in the Official Gazette. Placing reliance upon the principles formulated in the celebrated judgment of the Supreme Court in Harla Vs. State of Rajasthan2, Sri Bhanot submitted that in order for a law to be effective, it was imperative that the same be duly published so as to make the subjects of the enactment aware of all its provisions. He submitted that the principles enunciated in Harla have been consistently followed by this Court as well as the Supreme Court in subsequent judgments and has, in this connection, also placed reliance upon I.T.C. Bhadrachalam Paperboards Vs. Mandal Revenue Officer3. Sri Bhanot submits that the publication of a statute is a mandatory obligation which must be fulfilled before it can be said that the enactment or subordinate legislation has come into being. He highlighted the object underlying the requirement of publication of an enactment in the Gazette as enumerated by the Supreme Court in I.T.C. Bhadrachalam and therefore submitted that this obligation cannot be described as one which is dispensable or directory. Sri Bhanot further referred to the relevant provisions of the General Clauses Act, 18974 as also the U.P. General Clauses Act, 19045 to buttress his submission that a publication in the Official Gazette is a sine qua non for the coming into operation of any enactment. According to him, it is the date of publication in the official gazette which is the crucial and determinative event or moment evidencing the enactment coming into being. In the facts of the present case, according to Sri Bhanot, since the 1985 Rules were published only on 31 August 1985, they could not be said to be applicable to appointments which had been made prior thereto. In view thereof he submitted that the appointment of the appellant made on 18 April 1985, could not have been faulted.
Sri Rama Nand Pandey, the learned Additional Chief Standing Counsel while opposing the said submissions advanced by Sri Bhanot has contended that the 1985 Rules and more particularly Rule 1(2) thereof clearly prescribed that they were to come into force "at once". Sri Pandey consequently submits that the 1985 Rules would be deemed to have come into force on 16 March 1985 itself. According to him, merely because these Rules dated 16 March 1985 came to be published in the Gazette only on 31 August 1985, this would not have the effect of postponing the date when the rules would be deemed to have come into force. According to Sri Pandey, the use of the words "at once" in Rule 1(2) unambiguously establishes the legislative intent of the rules being made enforceable from the date of their making and would therefore be deemed to have come into force on 16 March 1985 itself. Consequently, he submitted that no appointment post 16 March 1985 could have been made without following the procedure prescribed therein. In his submission, therefore, the appointment of the appellant was rightly terminated in terms of the Government Order dated 23 September 1985.
Before we deal with the primary issue canvased before us, it becomes apposite to note that the order of termination did not rest upon this issue alone. Admittedly, the Government Order dated 31 October 1984 clearly held the field at the time when the appointment of the appellant came to be made on 18 April 1985. This government order clearly prescribed the year of recruitment to commence from 1 July and to end on 30 June of the following year. We further note that the Government Order dated 31 October 1984 referred to the Subordinate Offices Clerical Staff (Direct Recruitment) Fourth Amendment Rules, 19796 which appear to have governed the field till they were suspended in their operation by the Government Order dated 31 October 1984. The suspension of these statutory rules appears to have continued till the promulgation of the 1985 Rules. During the interregnum the provisions of the Government Order dated 31 October 1984 appears to have occupied the field and governed the subject of selection to posts in the subordinate offices in the State of U.P. This government order prescribed the composition of the District Selection Committee and the procedure to be followed by the said selection committee while effecting appointments to posts in the subordinate offices of the State. Admittedly the appointment of the appellant came to be made on 18 April 1985 prior to the commencement of the year of recruitment as prescribed under these rules. We note that the learned counsel for the appellant was unable to establish before us that this objection noted in the Government Order 23 September 1985 was either unjustified or unsustainable. In our considered view this objection noticed in the impugned order dated 23 September 1985, was sufficient to sustain the termination of the temporary engagement of the appellant. However, since much argument was advanced on the issue of commencement of the 1985 Rules, we proceed to deal with this contention also hereinafter.
The basic principle which was laid down by the Supreme Court in Harla stands elucidated in paragraph 8 of the report which read as follows:
"[8] We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential."
(emphasis supplied) It is this principle enunciated in the celebrated judgment of the Supreme Court which has been reiterated on more than one occasion thereafter. The principle so enunciated was again followed and applied in B.K. Srinivasan Vs. State of Karnataka7 as well as Gulf Goans Hotels Co. Ltd. Vs. Union of India8. In the latter judgment the Supreme Court observed as follows:
"22. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla v. State Of Rajasthan [AIR 1951 SC 467 : 1952 Cri LJ 54] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed: (AIR p. 468, para 8) "8. ... Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more, is abhorrent to civilised man.
23. The Court in Harla v. State of Rajasthan [AIR 1951 SC 467 : 1952 Cri LJ 54] noticed the decision in Johnson v. Sargant & Sons [(1918) 1 KB 101 : 87 LJ KB 122] and particularly the following : (AIR pp. 468-69, para 11) "11. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant & Sons [(1918) 1 KB 101 : 87 LJ KB 122], that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public, and the difference between an order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be."
24. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette (B.K. Srinivasan v. State of Karnataka) [(1987) 1 SCC 658]. Admittedly, the "guidelines" were not gazetted."
While the basic principles elucidated in these judgments cannot for a moment be doubted, we must necessarily bear in mind the nature and character of the 1985 Rules and that these judgments were rendered in the backdrop of subordinate legislation framed under a parent enactment which mandated publication or to which the provisions of the respective General Clauses Act applied. Before dilating on this aspect further, we deem it appropriate to pause here and notice the relevant provisions of the General Clauses Act. It becomes pertinent to note that the central enactment [1897 Act] in Section 5 prescribes as to when a Central Act would come into operation. Section 5 reads as follows:
"5. Coming into operation of enactments- [(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,-
(a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and
(b) in the case of an Act of Parliament, of the President.] (2)[* * *] (3) Unless the contrary is expressed, a [Central Act] or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement."
Insofar as making of subordinate legislation is concerned, the Central enactment in Sections 22 and 23 prescribes the making of rules, by laws and regulations in exercise of powers conferred by the primary statutory enactment. These, however, are not relevant insofar as the present case is concerned. The 1904 Act in Section 5 prescribes as to when an Uttar Pradesh Act made after commencement of the Constitution would come into force. It prescribes that such an enactment would come into force on the date on which the assent thereto of the Governor or the President, as may be required, is first published in the Official Gazette. Section 5 is in the following terms:
"5. Coming into operation of enactments.- (1) Where any United Provinces Act is not expressed to come into operation on a particular day, then-
[(a) in the case of an Uttar Pradesh Act made before the commencement of the Constitution it shall come into operation, if it is an Act of the Legislature, on the day on which the assent thereto of the Governor, the Governor-General or His Majesty, as the case may require, is first published in the Official Gazette, and, if it is an Act of the Governor, on the day on which it is first published as an act in the Official Gazette;
(b) in the case of an Uttar Pradesh Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the Official Gazette.
(2) Unless the contrary is expressed, an [Uttar Pradesh] Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement."
Insofar as the framing of rules is concerned, the 1904 Act in Section 23 A provides for the manner in which the date of coming into effect of rules is to be computed. Here also the Section provides that rules after being laid before each Houses of the State legislature for a total period of not less than 30 days and unless some later date is appointed, take effect from their publication in the Gazette.
It however bears mention here that neither Section 5 of the 1897 Act nor Section 5 and 23 A of the 1904 Act have strict application to the rules which form subject matter of our consideration. This because these provisions relate to the coming into operation of either a Central or State Act or rules and regulations framed therein. They therefore strictly apply only to Central or State enactments and subordinate legislation framed thereunder. Harla as also B.K. Srinivasan and Gulf Goans Hotels Co. Ltd. all related to subordinate legislation framed under a parent enactment or to rules and regulations to which the provisions of the respective General Clauses Act applied. The 1985 Rules, however, are neither a Central or State enactment nor have they been framed under statutes of the aforementioned genre. These rules have been framed by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution. The first issue which therefore arises for consideration is whether the various judgments pressed into aid by the learned counsel for the appellant would have any application to rules framed under the proviso to Article 309 of the Constitution. This primarily because neither Article 309 nor its proviso prescribes or mandates any mode of publication of rules framed thereunder.
This issue fell directly for consideration before the Supreme Court in T. Narasimhulu and Others Vs. State of Andhra Pradesh and Others9. The Supreme Court in this case was considering certain amendments made to the Andhra Pradesh Forest Service Rules, which though published in the Gazette on 19 May 1995 and 3 July 1995 prescribed that they were to come into effect from 8 April 1986. The contention advanced before the Supreme Court was that although the amendments were published in the Official Gazette on 19 May 1995 and 3 July 1995, the amendment to Rule 2 which provided that the rules would have retrospective effect from 8 April 1986 was not published in the Official Gazette. In this backdrop it was urged for the consideration of the Supreme Court that Rule 2 insofar as it conferred retrospectivity would be deemed to have not come into existence at all. Dealing with this issue the Supreme Court observed as under:
"12. The proviso to Article 309 further says that "any rules so made shall have effect subject to the provisions of any such Act" made under Article 309 of the Constitution. The words "any rules so made shall have effect" signify that the rules will become operative subject only to the provisions of the Constitution and the provisions of any Act made by the appropriate Legislature under Article 309 of the Constitution. Hence, Section 21 of the Andhra Pradesh General Clauses Act, which provides that where in any Act, or any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the Official Gazette, has no application whatsoever to a rule made under the proviso to Article 309 of the Constitution.
14. As we have seen, the amendments to Rule 2 of the Forest Service Rules by G.O.Ms. Nos. 35 and 51 with retrospective effect are sought to be made in exercise of powers conferred under the proviso to Article 309 of the Constitution and not in exercise of any power conferred by any Act made by the State Legislature and the Constitution or any appropriate Act made under Article 309 of the Constitution does not prescribe any mode of publication of rules made under the proviso to Article 309."
(emphasis supplied) Dealing further with the issue as to whether in the absence of any requirement whether rules framed under the proviso to Article 309 of the Constitution were required to be published at all, the Supreme Court held:
"15. This is not to say that rules made under the proviso to Article 309 of the Constitution are not required to be published at all. A rule made under the proviso to Article 309 of the Constitution has the same effect as an Act of appropriate Legislature regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Hence, even if Article 309 of the Constitution does not say that the rules made under the proviso thereto are required to be published, these rules are required to be published just as any other Act passed by the appropriate Legislature is required to be published so that the persons affected by the rules or the Act are aware of the rule or the Act" (emphasis supplied) Although having held that rules framed even under the proviso to Article 309 of the Constitution must be published, the contention advanced before the Supreme Court was negatived in the following terms:
"17. It will be clear from the law laid down by this Court that where the law prescribes the mode of publication of the law to become operative, the law must be published in that mode only, but where the mode of publication of the law is not prescribed by the law, such law should be published in some usual or recognised mode to bring it to the knowledge of all persons concerned. In the present case, the contention of the appellants before the Tribunal or the High Court was not that the Government Order in G.O.Ms. Nos. 35 and 51 that the amendment to Rule 2 of the Forest Service Rules would have retrospective effect from 08.04.1986 was never made known by any reasonable mode, but that it was not published in the Official Gazette. This contention of the appellants, as we have seen, has no merit."
The contention, therefore, that a rule framed under the proviso to Article 309 would not come into effect till published in the Official Gazette, was turned down. The principle deducible from the above judgment is that although Article 309 does not prescribe any mode of publication nor does it mandate a publication of the rules in the Gazette, all that is required is that such rules be published in some usual, recognised or reasonable mode. If the rules have been brought into being by way of a reasonable or recognised mode of publication their coming into effect cannot be postponed or be made dependant upon a publication in the gazette. Their Lordships noted that it was not the contention of the appellant before it that the amended rules were not made known by any reasonable mode and that all that was contended was that they were not published in the Official Gazette. This contention was specifically noted and rejected.
Reverting to the fact of our cases, we find that the contention advanced on behalf of the appellant must necessarily fail on the same ground. As has been noted by us in some detail, the only submission urged was that the rules would be deemed to have come into effect only from 31 August 1985 when they came to be published in the Official Gazette. It was not the case of the appellant that the 1985 Rules framed on 16 March 1985 were not published or made known to the concerned or affected parties by any other reasonable mode of circulation or publication. In fact, the assertion in the writ petition was that although the rules came into force on 16 March 1985 they were not retrospective and would not apply to selections made before the said date. Before the learned Single Judge the sole contention advanced was that since these rules had been published only on 31 August 1985 they would be deemed to have came into force only from the said date and not from 16 March 1985. Following the decision rendered by the Supreme Court in T. Narasimhulu, we find ourselves unable to sustain the said submission.
A somewhat similar issue arose for consideration before the Full Bench of the Court in Brij Bhushan Chaudhary and others Vs. State of U.P. and others10. One of the issues which arose for consideration was the date from which the Foreign Liquor 3rd Amendment Rules, 2002 and the Beer 2nd Amendment Rules 2002 would be deemed to have come into force. The Full Bench noted that although these rules were ordered to be published by the Governor on 14 March 2002 they came to be actually published only on 3 April 2002. These rules also were to come into force "at once". This aspect was dealt with and answered by the Full Bench in Paragraph 61 in the following terms:
"61. In the instant case assuming that Governor ordered publication of Notification dated 14-3-2002 on the said date itself but the same was actually published on 3-4-2002, that would have no effect on the validity of the rules. The only question would be from which date the rules would take effect. While Country Liquor Rules, 2002 expressly mention in Rule 1(ii) that they shall come into force from the date of their publication in the Gazette, the Foreign Liquor 3rd Amendment Rules 2002 and Beer 2nd Amendment Rules 2002 clearly State in Rule 1(ii) that they shall come into force at once. "At once" would mean immediately on the date, march 14, 2002. In view of Section 77, there can be no doubt that the Foreign Liquor & Beer rules would come into force on 14-3-2002. In the case of Major G. S. Sodhi (Supra) it was held that the publication in the official Gazette is presumed when a printed copy of the Gazette is produced. However, in the instant case there is no dispute that the publication took place on 3rd April, 2002. No licence was granted prior to the publication in the Gazette. Only an advertisement was published. Advertisement being step towards grant of licence and being in conformity with the rules, therefore, there is no scope for challenge only on the ground of its non-publication. The decision rendered in State of U.P. v. Kishori Lal Minocha, AIR 1980 SC 680, Vijay Prakash Jaiswal v. State of U.P., 1984 UPTC 178 and State of U.P. v. M/s. National Industrial Corporation (of the Supreme Court) decided on 17-9-1996 cited by Mr. Bharatji Agrawal, learned Senior Advocate for the writ petitioners do not apply to the facts of the instant case. That apart, taking into consideration the fact that that said Rules were notified in the official Gazette of 3-4-2002 and as such, came into force on that date, the same cannot have any effect in view of the fact that no licence was, in fact, granted on the basis of advertisement for holding the lottery except that direction made in the interim order was carried out and licence was granted by way of interim arrangement. The fact that the State Government proceeded to hold lottery on 26-3-2002 is only step towards grant of licence but no licence was, in fact, issued on that basis and as such, there was no illegality even assuming that the Rules did not come into existence with effect from 26-3-2002. Both the questions 3(a) and 3(b) are answered accordingly."
(emphasis supplied) In light of the aforesaid discussion, we find ourselves unable to find fault with the ultimate conclusion arrived at by the learned Single Judge on this aspect of the matter. The reason assigned in the impugned order that since the appointment of the appellant had been made even before the commencement of the year of recruitment has not been established before us to be incorrect or legally unsustainable. The learned Single Judge has on equitable considerations, restrained the respondents from effecting any recoveries from the appellant of emoluments drawn during the pendency of the writ petition. This even though a stricter application of the law would have perhaps entailed all benefits drawn on the strength of an interim order being forfeited upon an ultimate dismissal of the writ petition. On an overall conspectus, therefore, we would uphold the judgment entered by the learned Single Judge.
Accordingly, we maintain the disposal of the writ petition on terms indicated in the judgment of the learned Single Judge and dismiss the special appeal.
Order Date :- 9.2.2017 S. Thakur/Arun K. Singh (Dilip B Bhosale, CJ) (Yashwant Varma, J)